U.S.A v. Mcconnell

• Decision Date: 19 May 2010
• Docket Number: No. 09-3036.,09-3036.
• Citation: 605 F.3d 822
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jason C. McCONNELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

605 F.3d 822

UNITED STATES of America, Plaintiff-Appellee,v.Jason C. McCONNELL, Defendant-Appellant.

No. 09-3036.

United States Court of Appeals, Tenth Circuit.

May 19, 2010.

Melody Evans, Assistant Federal Public Defender (Cyd Gilman, Federal Public Defender, with her on the brief), Topeka, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Lanny D. Welch, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before HENRY, ANDERSON and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.

Jason McConnell pleaded guilty to one count of possessing a firearm after conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In calculating the advisory range of sentences under the United States Sentencing Guidelines (USSG), the district court determined that Mr. McConnell's prior Kansas conviction for fleeing and eluding a law enforcement officer under Kan. Stat. Ann. § 8-1568 constituted a “crime of violence” under USSG § 4B1.2. The court granted Mr. McConnell a downward variance from the advisory Guidelines range and imposed a sentence of 48 months' imprisonment.

Mr. McConnell now argues that the district court erred in characterizing his Kansas fleeing and eluding conviction as a “crime of violence.” Although he concedes that in United States v. West, 550 F.3d 952 (10th Cir.2008), this court upheld that characterization of a similar Utah offense, he maintains that the Supreme Court's subsequent decision in Chambers v. United States, ---U.S. ----, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), has overruled the principal holding of West. We are not persuaded, and we therefore affirm Mr. McConnell's sentence.

I. BACKGROUND

In March 2007, a grand jury indicted Mr. McConnell on one count of possessing a firearm after conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In June 2008, Mr. McConnell pleaded guilty to this charge without a plea agreement.

The presentence report applied USSG § 2K2.1(a)(4)(A), which provides for a base offense level of 20 “if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” The report concluded that Mr. McConnell's prior conviction under Kan. Stat. Ann. § 8-1568 for fleeing or eluding a police officer constituted a “crime of violence.” It then recommended a two-point increase in the offense level because the firearm that Mr. McConnell possessed was stolen see USSG § 2K2.1(b)(4), and subtracted three levels for acceptance of responsibility see USSG § 3E1.1(a). These calculations yielded an adjusted offense level of 19. With a criminal history category of VI, Mr. McConnell's advisory Guidelines range was 63 to 78 months.

Mr. McConnell objected to the presentence report's determination that his Kansas state conviction for eluding a law enforcement officer was a “crime of violence” under § 2K2.1(a)(4)(A). Invoking Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers, ---U.S. ----, 129 S.Ct. 687, 172 L.Ed.2d 484, he argued that the Kansas conviction did not present a serious potential risk of physical injury to another. In his view, the presentence report should have applied a base offense level of 14, resulting in an advisory Guidelines range of 33 to 41 months. He requested a sentence of 33 months' imprisonment.

At the sentencing hearing, the district court overruled Mr. McConnell's objection, relying on this circuit's decision in West, 550 F.3d 952. The court explained that “the West case is very much on point with ours in terms of the particular statute under Utah law, so it really couldn't have more application.” Rec. vol. 3, at 29 (Tr. of Jan 26, 2009 Sent'g Hr'g). The court rejected Mr. McConnell's argument that the Supreme Court's decision in Chambers overruled West. Id. at 29-30.

The district court then imposed a sentence of 48 months' imprisonment, reflecting a downward variance from the advisory Guidelines range. Id. at 31-35. In support of the variance, it reasoned that “[Mr. McConnell's] Criminal History Category VI and the consequences of assessing the eluding crime as a crime of violence, in fact, do overstate both the danger to the community that Mr. McConnell presents and his likelihood to reoffend.” Id. at 33.

II. DISCUSSION

Mr. McConnell now argues that the district court erred in characterizing his prior Kansas state conviction for eluding a law enforcement officer as a “crime of violence” under USSG § 2K2.1(a)(4)(A). He maintains that the statute at issue, Kan. Stat. Ann. § 8-1568, does not require proof of “any violent elements,” and that “[t]here are numerous ways to violate this statute without posing a significant risk of physical harm.” Aplt's Br. at 9 (internal quotation marks omitted). Mr. McConnell observes that, even though he was charged with being involved in a motor vehicle accident or intentionally causing damage to property while attempting to elude a pursuing police vehicle, “[u]nder this charge, [he] could have accidently, recklessly damaged his own vehicle when he did not respond to police signals to stop.” Aplt's Br. at 10-11. In his view, the offense conduct was not intentional or purposeful. Id. at 11.

Whether a prior conviction qualifies as a “crime of violence” under the Guidelines is a legal question that we examine de novo. United States v. Charles, 576 F.3d 1060, 1066 (10th Cir.2009). In interpreting the Guidelines, “we look at the language in the guideline itself, as well as at the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission.” Id. (internal quotation marks omitted). “Commentary to the Guidelines ‘is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.’ ” Id. (quoting United States v. Torres-Ruiz, 387 F.3d 1179, 1181 (10th Cir.2004)).

A. USSG § 2K2.1(a)(4)(A) adopts the definition of a “crime of violence” set forth in USSG § 4B1.2(a).

Section 2K2.1(a)(4) establishes a base offense level of 20 if the defendant has formally been convicted of a “crime of violence.” The commentary to that provision explains that “[c]rime of violence” has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2. USSG § 2K2.1 cmt. n. 1.

In turn, the phrase “crime of violence” is defined in USSG § 4B1.2(a) as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The accompanying commentary adds that

“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

Id. cmt. n. 1.

Here, the parties agree that Mr. McConnell's prior fleeing-and-eluding conviction in a Kansas court does not have as an element “the use, attempted use, or threatened use of physical force against the person of another” under § 4B1.2(a)(1) and is not one of the specifically listed offenses under § 4B1.2(a)(2) or the accompanying commentary. Thus, the dispute concerns whether Mr. McConnell's Kansas conviction “otherwise involves conduct that presents a serious potential risk of physical injury to another” and is therefore a “crime of violence.” See USSG § 4B1.2(a)(2).

B. In determining whether Mr. McConnell's Kan. Stat. Ann. § 8-1568 fleeing-and-eluding conviction constitutes a “crime of violence” under USSG § 4B1.2(a)(2), this court applies a modified categorical approach.

In determining whether a conviction qualifies as a “crime of violence” under § 4B1.2, “we apply a categorical approach that looks to the words of the statute and judicial interpretations of it, rather than to the conduct of any particular defendant convicted of that crime.” United States v. Wise, 597 F.3d 1141, 1144 (10th Cir.2010). “[I]f the statute encompasses both conduct that would qualify as a crime of violence and conduct that would not, we employ a modified categorical approach.” Id. We examine “the statutory elements, the defendant's charging documents, plea agreement and colloquy (if any), and the uncontested facts found by the district judge to determine whether the particular defendant's conduct violated the portion of the statute that is a crime of violence.” Id.; see also Charles, 576 F.3d at 1067-69 (applying the modified categorical approach and remanding for further findings). This approach does not involve a subjective inquiry into the facts of the case; instead, we seek to determine “which part of the statute was charged against the defendant and, thus, which portion of the statute to examine on its face.” United States v. Sanchez-Garcia, 501 F.3d 1208, 1211 (10th Cir.2007) (internal quotation marks and citation omitted).

Here, as noted above, Mr. McConnell was convicted of violating Kan. Stat. Ann. § 8-1568, which provides, in part, that:

(a)(1) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop for a pursuing police vehicle or police bicycle, when given visual or audible signal to bring the vehicle to a stop,

...